Note: Compulsory Process and the War on Terror: A Proposed Framework

The War on Terror has presented numerous questions never before examined in our constitutional jurisprudence. The challenges imposed on our legal system since 9/11 compel the judiciary to protect constitutional rights in the most difficult of circumstances. One of these challenges requires our civilian criminal justice system to reconcile a criminal defendant’s constitutional right to compulsory process with the government’s national security concerns. The case that presented this question, United States v. Moussaoui, is emblematic of War on Terror cases that have raised constitutional concerns.

The Sixth Amendment articulates an imperative, stating that all criminal defendants “shall” have the right to compulsory process “for obtaining witnesses in their favor.” Subject to a showing of the evidence’s materiality, this categorical constitutional command requires the government to produce exculpatory evidence in its possession upon the defendant’s request. In Moussaoui, the Fourth Circuit invoked a balancing test to hold that the government’s national security interests took precedence over Moussaoui’s constitutional right to compulsory process. While this decision protected Moussaoui’s right to compulsory process in form, it gutted it in substance.

This Note suggests that a new constitutional approach is needed to resolve the emerging tensions between the categorical constitutional commands of the Sixth Amendment and the government’s asserted interest in national security. This Note constructs a new framework for adjudicating such disputes. It argues for the abandonment of the balancing test and the reinstatement of a per se rule. This standard requires that once a defendant makes a showing of materiality sufficient to meet the constitutional standard, the government must provide access to exculpatory evidence in its possession. In the event that the government refuses to provide access, the proposed framework crafts a remedy for the violation of the defendant’s constitutional rights.